Can courts nullify/strike down rules of the legislature if they violate fundamental rights?

In the U.S., the courts have a final say on whether a statutory provision is constitutional, and if it is not, then it is immediately ineffectual, with immediate (non-) effect.

In the UK, the fundamental protections of the human rights act is more of a preferred overlay, but in case of a true conflict, it doesn’t override other laws without parliamentary say so, due to the principle of Parliamentary sovereignty/supremacy, so the best a court can do in case of a law which violates fundamental rights is to issue declarations of incompatibility.

Which countries follow the more former paradigm, especially in Europe?

  • 2
    In the interest of providing balanced feedback, this is an excellent question. It's a shame that it might be closed as a dupe. Commented Jan 27 at 16:43
  • 1
    This is not a duplicate, because "fundamental rights" and "constitutional rights" aren't necessarily the same thing. For example, it's unlikely, but the US Supreme Court could theoretically rule that a law is invalid because it violates the Universal Declaration of Human Rights. The UDHR is not part of the Constitution, so this wouldn't mean the law was unconstitutional, but it would mean that the law was held to violate fundamental rights. While I'm not aware of any, it wouldn't be surprising if there is at least one country where this has happened.
    – Someone
    Commented Jan 27 at 18:53
  • 1
    Well what status does the UDHR even have in American jurisprudence? Commented Jan 27 at 20:29
  • 2
    Does this answer your question? Do courts declare acts of the legislature unconstitutional?
    – Trish
    Commented Jan 27 at 22:04

4 Answers 4


The Bundesverfassungsgericht can strike down laws if they are against the constitution. Laws are generally passed with a simple majority (sometimes just of the federal legislature, sometimes also of the states' chamber), the constitution requires a supermajority, and some parts of the constitution are protected from changes which "affect their essential content."

So the Verfassungsgericht can (and regularly does) tell the legislature what laws it may not (or must) enact, based on the constitution which was passed or amended by a previous legislature or even the same session. For instance, the court concluded that principles of the protection of future generations require more climate protection today.

  • 2
    Perhaps noteworthy that the court can not act spontaneously; either it acts in a case of abstrakte Normenkontrolle or because somebody sees their constitutional rights violated and "complains" to the court. Commented Jan 28 at 13:33
  • 1
    Also noteworthy: lower courts can, when they think a law violates the constitution and it's relevant to their case, pause the case and send the question to the constitutional court. Commented Jan 29 at 0:38

What “fundamental rights”?

The courts can strike down any law that violates the Constitution, however, apart from the free exercise of religion, the Australian Constitution contains no explicit guarantee of rights. Nor is there are seperate Act of Parliament that provides one.

There are, however, implicit rights in the Constitution.

The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals.

This was decided in 1992, and, in the thirty years or so since, no other rights have been found.

The courts can strike down a law if it violates one of these two rights, but, providing the law stays within a head of power granted to the Federal government by the Constitution, they cannot disallow them.

States vary on whether they have a bill of rights, for example, does, doesn’t. However, these always have a “get out of jail free card” allowing Parliament to explicitly override the rights - the Victorian escape clause is s31. This is essentially the same as the UK’s concept of Constitutional Acts which also require explicit rather than implicit overruling.

Australia, while it does have special purpose courts and tribunals (e.g. various Administrative Appeals Tribunals, Land and Environment Courts etc), Australia does not have dedicated Constitutional courts. Any court with jurisdiction over a case could declare a law unconstitutional. Note that state courts have Federal jurisdiction but not vice-versa.

  • Does it need a special court to strike down a law as violating the constitution, or can any court just decide that for themselves?
    – nvoigt
    Commented Jan 27 at 20:59

To the extent that a fundamental right has been constitutionalized, courts can render laws that unjustifiably infringe that right to be of no force or effect.

In interpreting a law alongside section 52(1) of the Constitution Act, 1982, and alongside the Canadian Charter of Rights and Freedoms, courts have the power to issue "declarations of unconstitutionality." This of course does not remove any law from the statute books; that would require legislative action. But the court does, truly, declare the impugned law to be unconstitutional and to have no force or effect.


In France, and I suspect elsewhere in the European Union, fundamental rights are guaranteed by the Constitution (and other constitution-like texts) on one hand, and by the European Union treaties, in particular the Charter of Fundamental Rights


Parties in a trial (but not the judges) can raise an objection as to the compliance of a law with the constitution; this is known as a "Question Prioritaire de Constitutionalité" (priority preliminary ruling on constitutionality). If the problem raised is serious and original enough, then the trial is put on hold until the constitutional court rules on the issue. If they find the law to violate the constitution, it is stricken, as if it were never passed (most of the time - delayed application of QPC rulings would be a good separate question).

European treaties

Judges (and not parties in a trial) can ask the Court of Justice of the European Union a question on the interpretation of the treaties.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .